Part of Heather Del Castillo’s job as a health coach was providing tips on natural eating. While this was fine for her to do in California, in Florida, her title as “health coach” didn’t qualify her to give dieting advice. In fact, Florida officials fined her $750 and sent her a cease-and-desist order because she was working without a license. Del Castillo sued, claiming that her right to free speech was violated....
In an action based on alleged radiation injuries to residents of a former uranium and vanadium milling town owned and operated by defendants, summary judgment for defendants is affirmed where: 1) plaintiffs’ personal-injury claims failed for lack of evidence of factual causation; and 2) plaintiffs’ medical-monitoring claims failed for lack of evidence of a “bodily injury” as required by the Price-Anderson Act. Read June v. Union Carbide Corp., No. 07-1532...
In a First Amendment challenge to restrictions on lobbying, soliciting clients, participating in class actions, and seeking attorneys’ fees imposed on legal aid organizations that received federal grants through the Legal Services Corporation, summary judgment for defendants is affirmed where: 1) the regulations did not discriminate against any particular viewpoint or motivating ideology; and 2) plaintiffs’ professed fear that their federal funding might be terminated was not sufficient to support an as-applied challenge....
Louisiana Sch. Employees’ Ret. Sys. v. Ernst & Young, LLP, 08-6194, concerned a challenge to the district court’s dismissal on the pleadings pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6) and the pleading requirements of the Private Securities Litigation Reform Act of 1995 (PSLRA), in a securities fraud class action lawsuit against a public accounting firm Ernst & Young in connection with purchase of publicly traded securities of a pharmaceutical distribution company....
Fall semester classes are finally wrapping up, and you’ve got a week to get it together before final exams. But without the structure and regular schedule you’re used to during the semester, how do you make the most of your fall break? For first-year students, this time in limbo can be both exciting and a little daunting. Here are some do’s and don’ts to have a productive and rejuvenating fall term reading week:...
District court’s denial of petition for habeas relief by a defendant convicted of multiple crimes related to a 1998 shooting death is affirmed where: 1) defendant failed to make a prima facie showing of the prejudice element of his ineffective assistance of counsel claims; and 2) the district court did not abuse its discretion in declining to convene an evidentiary hearing to resolve defendant’s claims. Read Palmer v. Hendricks, No. 06-2991...
Governor Chris Christie’s former chief deputy counsel, Paul Matey, was confirmed this week as the newest member of the United States Third Circuit Court of Appeal. Notably, Matey’s confirmation may not have been as contentious as Justice Kavanaugh’s hearing, but there was definitely some political drama. Matey was originally nominated in April 2018, but neither of his home state senators returned the blue slip on him, which traditionally, has been a way to quash nominations....
This is a tough question: What do police officers do when a group called Bible Believers, carrying a severed pig’s head and yelling about a “pedophile prophet,” are confronted at the Arab International Festival in Dearborn, Michigan, by Muslim children with rocks and bottles? The “peaceful” proselytizers are kind of asking for it. But you don’t want to crush their speech rights by giving in to the hecklers who are pelting them with rubble....
It’s a question that has plagued mankind (assuming lawyers are human) for centuries. And by centuries, we mean since the great Civil Procedure shakeup of 2007-2009. If a complaint is filed in a state court under notice pleading requirements, then removed to federal court on diversity grounds, does it have to comply with Iqbal and Twombly standards? Pardon us while we desperately call our old Civil Procedure professors. Oh wait, never mind....
In a murder case, petitioner’s habeas petition is granted where defense counsel performed inadequately by failing to consult with a forensic expert, and this resulted in prejudice because the available forensic testimony would have contradicted the prosecution’s explanation of the events that transpired. Read Richter v. Hickman, No. 06-15614 Appellate Information Argued and Submitted December 17, 2008 Filed August 10, 2009 Judges Opinion by Judge Reinhardt Dissent by Judge Bybee...
The Second Circuit Court of Appeals released its opinion in the Sergey Aleynikov appeal on Wednesday, more than six weeks after the court reversed Aleynikov’s source code theft conviction. Aleynikov was convicted in 2010 of stealing trade secrets from his employer, Goldman Sachs, under the Economic Espionage Act (EEA). On appeal, Aleynikov argued that the Goldman Sachs source code at the center of the case was not a “stolen good” within the meaning of the National Stolen Property Act (NSPA), and that it was not related to a product “produced for or placed in interstate or foreign commerce” within the meaning of the EEA....
Sinisterra v. US, No. 08-1925, concerned a capital murder prosecution, in which the district court denied defendant’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. section 2255. The court of appeals affirmed in part, holding that 1) the prosecutor’s closing remarks did not have the effect of diverting the jury from its role in weighing defendant’s mitigation evidence; and 2) defendant failed to show that, had counsel objected to improper statements by the prosecutor, he would not have received the death sentence....
On Monday, the Supreme Court decided a case that had circuit court of appeals split, that is, whether property, as defined by the Mandatory Victims Restitution Act of 1996 (“Act”), is “‘returned’ when a victim takes title to collateral securing a loan that an offender fraudulently obtained from the victim.” The Supreme Court clarified its stance, and affirmed the Seventh Circuit’s opinion. In 2005, Benjamin Robers fraudulently obtained a loan for $470,000 from two banks, and purchased two homes....
In a 42 U.S.C. section 1983 action based on Defendant-Officers’ alleged withholding of exculpatory evidence, the partial denial of Defendants’ motion for summary judgment based on qualified immunity is affirmed, where police inspectors have a duty to disclose exculpatory evidence and a showing of bad faith was not required. Read Tennison v. City and County of San Francisco, No. 06-15426 Appellate Information Argued and Submitted June 12, 2007 Submission Vacated May 21, 2008...
This week, the Tenth Circuit Court of Appeals refused to address whether turning a password over to the authorities amounts to self-incrimination because it lacked jurisdiction to hear the case. That means that Ramona Fricosu must comply with U.S. District Judge Robert Blackburn’s order to turn over an unencrypted version of her hard drive that requires a password for investigators to examine documents, according to the Huffington Post. Fricosu has until Monday to obey the order....
Sentences of defendants convicted of conspiring to distribute or possess with intent to distribute heroin and cocaine are affirmed where: 1) district court did not clearly err by finding that one of the defendants occupied a managerial or supervisory role in enhancing his offense level under U.S.S.G. section 3B.1(c); and 2) district court’s application of the section 3C1.1 obstruction of justice enhancement to the other defendant was not clearly erroneous as his statements in an affidavit were material, and as such, defendant was not eligible for an acceptance of responsibility reduction....
When it comes to online services seeking to disrupt the status quo, VidAngel has taken a surprisingly polite approach, at least for its consumers. The service focuses on censoring popular media so that it is more family friendly. However, while trying to be friendly to families, VidAngel was rather rude to the companies that made the popular media it was censoring. As the ongoing legal battles revealed, the censoring service failed to obtain proper licensing rights before editing and redistributing the creative work of others....
The Department of Justice estimates that one in every ten seniors is abused yearly, but only one out of every 23 cases of abuse is reported to the authorities. This could be a combination of the decline in cognitive abilities of older adults and the lack of recognition of the signs of older adult abuse. Sometimes older adults do not see the signs of financial exploitation, abuse from nursing home staff, or even abuse from family members and caregivers....
“Overbilling” is one of the most common complaints against lawyers, and among the easiest to settle. After all, fees are negotiable, so discounting them is an option from the beginning. The hard part is settling after the firm has done the work. In any case, settlement is often the best way to resolve fee disputes. That’s what one BigLaw firm learned when hit with a complaint for a “billing feeding frenzy....
Kyle v. Comm’r of Soc. Sec., No. 09-3628, the Sixth Circuit faced a challenge to the district court’s affirmance of ALJ’s determination that claimant was not disabled for Social Security purposes. In affirming, the court held that the ALJ’s factual determination that claimant possessed supervisory skills transferable to other jobs was supported by substantial evidence. The court further held that the jobs to which the vocational expert testified claimant could transfer were consistent with the Dictionary of Occupational Titles....
